H-1B Visas for Professionals

Who is Eligible?

The H-1B nonimmigrant visa may be issued to individuals who seek temporary entry in a specialty occupation as a professional. There are a maximum of 65,000 H-1B visas issued per government fiscal year which begins October 1, 2004. Some examples of “specialty occupations” include accountant, computer analyst, engineer, financial analyst, scientist, architect or lawyer. The petition can be approved with a combination of college or university course work plus three years work experience for each year of university education missing. Together this would be deemed equivalent to a four-year bachelor’s degree.

How to Apply

A Labor Condition Application (LCA) is first filed with the U.S. Department of Labor (DOL). Then a Form I-129, Petition for Nonimmigrant Worker, with H Supplement, and supporting documentation including the approved LCA is filed with the Bureau of Citizenship and Immigration Services (INS) Regional Service Center having jurisdiction over the city of intended employment. A fee is required and the petition must be filed by a U.S. employer. Once the INS approves the H-1B petition, it will forward the approval to a U.S. Consulate.

Documentation Requirements

For those individuals seeking to perform temporary services in a specialty occupation, the petition must be filed with the following documentation:

An approved LCA from the DOL

Documentation that the job qualifies as a specialty occupation. A “specialty occupation” is defined as one that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a baccalaureate degree or higher as a minimum requirement for entry into the occupation in the United States. The employer may meet this requirement by showing that the nature of the specific duties are so complex or unique that they can be performed only by an individual with the required degree, or that the employer normally requires a degree or its equivalent for the position.

A copy of the alien’s U.S. college degree (bachelor’s, master’s or Ph.D.) and/or foreign degree with evidence that it is equivalent to a U.S. baccalaureate degree or higher. Evidence of education, specialized training, or experience that is equivalent to a U.S. baccalaureate degree may also be submitted to fulfill this requirement. To determine equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college level education that the alien lacks. To show equivalency to a master’s degree, the alien must have a baccalaureate degree and at least five years of progressively responsible experience in the specialty.

A copy of any required licence to practice the occupation in the state of intended employment

A copy of any written contract between the employer and the alien or a summary of the terms under which the alien will be employed if there is no written agreement.

In the event that the employer terminates the employment of the alien prior to expiration of the H-1B visa, the employer is responsible for providing return transportation of the alien to his or her last place of foreign residence.

Spouses and Minor Children

A spouse or unmarried child of an H-1B visa holder is entitled to an H-4 visa and the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but can attend school in the United States. Servants of an H-1B visa holder can receive a B-1 visa.

Duration of the Visa

An H-1B is approved by INS for an initial period of up to three years. The maximum term of an H-1B visa is six years, including extensions.

Disclaimer: Nothing on these pages should be taken as legal advice for any individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, please contact an IMMLAW attorney.